McMillan v. McMillan, 267 N.C. App. 537 (2019)

  • Facts: This case involves two jurisdictional issues one of which challenges whether the district court had subject matter jurisdiction in a Chapter 50 custody action based on whether the jurisdiction of a prior juvenile neglect action had been terminated.  
    • In 2010, shortly after the child’s birth, DSS initiated a neglect proceeding. After DSS filed the neglect petition but before the child’s adjudication, father filed a complaint for custody.
    • After the child’s adjudication in 2011, the Chapter 50 custody action was “administratively removed from the active court calendar and ordered closed by the Forsyth County District Court….” Sl.Op. at 2.
    • In 2012, a juvenile court order was entered that stated it “ ‘entered an order pursuant to N.C.G.S. 50- 13.1, 50-13, 50-13.5 and 50-13.7, as provided in G.S. 7B-911, awarding joint custody of the child’ to Plaintiff and Defendant” (Sl.Op. at 3) and “the Court terminates juvenile court jurisdiction and there shall be no further scheduled Court reviews” (Sl. Op. at 4). The record does not show a civil custody order was in fact entered.
    • In 2014, father (plaintiff) filed a motion to modify the Ch. 50 custody order. From 2014-2016, the parties operated under various memoranda of judgment/orders addressing temporary custody.
    • In 2018, the court entered an order awarding permanent primary legal and physical custody to mother (defendant) and secondary custody to father. Father appeals raising subject matter jurisdiction.
  • Subject matter jurisdiction may be raised at any time and is a question of law that is reviewed de novo.
  • Juvenile Court Jurisdiction:  Pursuant to G.S. 7B-200 and -201, the district court had exclusive original jurisdiction over the juvenile neglect proceeding until terminated by court order or the juvenile turns 18 or is emancipated, whichever occurs first. G.S. 7B-911 specifically authorizes the court to transfer a juvenile proceeding to a Chapter 50 custody action and establishes a detailed procedure for how that is accomplished. In this case, the 2012 juvenile order was insufficient to transfer the action to a civil custody action; “[h]owever, a court presiding over a Chapter 7B abuse, neglect, and/or dependency proceeding may terminate jurisdiction under Section 7B-201 without having to comply with the transfer requirements of Section 7B-911.” Sl.Op. at 13. The juvenile court order expressly stated it was terminating its jurisdiction, ended DSS and the child’s GAL involvement, and returned the parents to pre-petition status. See G.S. 7B-201. The trial court, therefore, had subject matter jurisdiction to hear the child custody case under G.S. Chapter 50.   
Abuse, Neglect, Dependency
Terminate Jurisdiction
G.S. 7B-911
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